Criminal Justice Section  


Criminal Justice Magazine
Spring 2005
Volume 20 Number 1


Are a Prosecutor's Responsibilities "Special"?

By Peter A. Joy and Kevin C. McMunigal

Peter A. Joy is a professor of law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri. Kevin C. McMunigal is the Judge Ben C. Green Professor of Law at Case Western University School of Law in Cleveland, Ohio. Both are contributing editors to Criminal Justice magazine.the chair of the Criminal Justice Section and a district court judge in Minneapolis, Minnesota.

Are the responsibilities of prosecutors special? If so, how? Standards for the ethical conduct of prosecutors are often described as different from standards for criminal defense lawyers and civil advocates. Reference is often made to the “special responsibilities” and “extraordinary duties” of prosecutors, and both courts and ethical rules admonish a prosecutor to be a “minister of justice” and to “seek justice.” Such descriptions and rhetoric, though, overstate the differences and fail to convey that in many, perhaps most, instances the standard of conduct for prosecutors is identical to that of civil advocates and criminal defense lawyers. Generalizations about a prosecutor’s special ethical duties also mask the fact that when prosecutorial standards do differ from those governing other lawyers, it is typically in degree rather than in kind.
In this column, we offer a panoramic view of the current contours of the rules governing prosecutors that is more nuanced than the one suggested by descriptions of prosecutor ethics as simply different, special, or extraordinary. We do not address here the various rationales that might be offered for creating distinct rules for prosecutors—a topic we will address in our next column.

Few ethics rules specifically address prosecutors

It is helpful at the outset to note that specific and detailed rules directly addressing the obligations of prosecutors simply do not exist for most areas of prosecutorial conduct. Model Rule 3.8, entitled “Special Responsibilities of a Prosecutor,” addresses only six topics and fails to address many questions prosecutors routinely face, such as conduct during plea negotiations and the boundaries of closing argument at trial. In addition to the scarcity of specific rules, it is difficult to access information about appropriate prosecutorial conduct beyond the ethics codes because it is scattered among a wide variety of sources, including constitutional case law, statutes, ethics, criminal procedure, and evidence rules, as well as internal prosecutorial guidelines. The disclosure obligations of a federal prosecutor, for example, are controlled by the Brady v. Maryland, 373 U.S. 83 (1963), line of constitutional cases, the Jencks Act, Federal Rules of Criminal Procedure 16 and 26.2, Federal Rule of Evidence 404(b), the United States Attorneys’ Manual, and any applicable ethical rules.
Even if one can find a specific provision, it may fail to give prosecutors adequate notice or guidance concerning their ethical obligations. Cases and ethics opinions dealing with prosecutorial conduct often resolve particular issues by simply noting that a particular course of action is dictated by the prosecutor’s special obligation to seek justice or the prosecutor’s special role as a minister of justice, without explaining the chain of inferences that connect relatively abstract ideas of justice to the appropriate course of conduct in a particular situation.
Enforcement of prosecutorial standards has also been lax, raising additional problems for assessing the current state of prosecutorial ethics. Model Rule 3.8(d), for example, sets forth an obligation to disclose exculpatory evidence or information that appears to be broader than the constitutional Brady disclosure obligation. But enforcement of this obligation through professional discipline of prosecutors is scant. There are few ethics opinions or cases addressing its contours. Cases addressing disclosure of exculpatory information often focus exclusively on the constitutional dimension and ignore the separate ethical duty. It is hard to resolve ambiguities concerning disclosure obligations with no body of ethics opinions or case law to provide guidance. For example, whether or not Model Rule 3.8(d) requires disclosure of exculpatory information prior to entry of a guilty plea remains unaddressed although this rule and a similar predecessor provision in the 1969 Model Code have been in effect for almost 40 years and prosecutors resolve thousands of cases through use of guilty pleas every day.
As a consequence of these problems, parts of the terrain of prosecutorial standards are murky; nonetheless, some things are clear.

Prosecutors often subject to same rules as other lawyers

The answer to the question of whether prosecutor standards differ from those applicable to other lawyers is more often no than yes. We will start with the no answer. Ethics codes such as the 1969 Model Code of Professional Responsibility and the 1983 Model Rules of Professional Conduct, most recently amended in February 2002 and updated again in August 2003, contain a few special rules for prosecutors along with a wide range of rules applicable to all lawyers. Prosecutors are subject to both these special rules and these general rules. Some rules of general applicability, such as those on advertising and fees, are not of concern to prosecutors because they neither advertise nor collect fees from clients. But many rules of general applicability are of concern to prosecutors because they deal with work that prosecutors routinely do—work that is often indistinguishable from the work other lawyers do.

A prosecutor’s ordinary duties

Words such as “special” and “extraordinary” used in describing the rules and duties applicable to prosecutors suggest that those rules and duties are peculiar, unique, uncommon—completely distinct from the rules and duties applicable to criminal defense counsel and civil advocates. But simply browsing the table of contents of the ABA Model Rules reveals that the provisions unique to prosecutors are relatively few—six provisions set forth in Model Rule 3.8. It also reveals that there are many rules that apply equally to all lawyers.
Berger v. United States, 295 U.S. 78 (1935), is the most frequently cited authority in cases, ethics opinions, and academic writing for the special obligations of prosecutors. It has been described as “the locus classicus for discussion of the extraordinary duties of a prosecutor.” (CHARLES W. WOLFRAM, MODERN LEGAL ETHICS, § 13.10 at 760 (1986).) Oddly enough, though, the case is an example of a prosecutor being held to account under a rule of general applicability rather than a rule that applies specially to prosecutors.
The Berger case, best known for the quote that while a prosecutor “may strike hard blows, he is not at liberty to strike foul ones,” enforced an obligation that is quite ordinary and applies equally to all advocates—the obligation of lawyers in a trial not to assert their personal knowledge of facts in issue. The prosecutor did a number of improper things warranting criticism, but Justice Sutherland, writing for the majority, primarily focused on the prosecutor’s assertion in closing argument of his personal knowledge of a fact he had attempted but failed to prove during the trial’s evidentiary phase.
The prosecutor had called a witness named Goldstein to identify the defendant, but, according to Justice Sutherland, Goldstein “had difficulty in doing so.” Nonetheless, the prosecutor was apparently convinced Goldstein knew the defendant and told the jury as much in his closing argument, stating “you can bet your bottom dollar she knew Berger” and describing the witness as “a woman that I knew, knew Berger and could identify him.”
Justice Sutherland concluded based on these statements that “the jury was . . . invited to conclude that the witness Goldstein knew Berger well, but pretended otherwise; and that this was within the personal knowledge of the prosecuting attorney.” Both the Model Rules and the Model Code prohibit prosecutors from asserting personal knowledge of facts at issue during a trial. But that duty is not imposed only on prosecutors, as later references to Berger seem to suggest. The relevant Model Rules provision is not found in Rule 3.8 covering the “Special Responsibilities of a Prosecutor,” but in Rule 3.4, captioned “Fairness to Opposing Party and Counsel,” which sets out rules applicable to all lawyers. The critical prosecutorial ethical obligation in Berger was the same as that imposed on criminal defense lawyers and civil advocates.

Extraordinary remedies

If not offered to justify the imposition of some extraordinary duty on the prosecutor, what then was the purpose of Justice Sutherland’s classic description of the prosecutor? The court of appeals had concluded that the prosecutor engaged in misconduct, but nonetheless affirmed Berger’s conviction because it thought it unlikely that the prosecutor’s misconduct had affected the outcome of Berger’s trial. The Supreme Court disagreed and ordered a new trial based on a much higher assessment of the probability that the misconduct affected the outcome in the case. Sutherland used the classic passage in Berger to introduce his discussion of the appropriate remedy and to justify his departure from the court of appeals on that issue.
Because of the status of the prosecutor as a government representative, Justice Sutherland thought the jury much more likely to accept the prosecutor’s improper assertions than if he had been a private lawyer representing a criminal defendant or a private party. Because of his special status, the prosecutor’s “improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Justice Sutherland found “prejudice to the cause of the accused . . . so highly probable that we are not justified in assuming its non-existence.” Rather than defining an extraordinary obligation, Berger is a case about imposing an extraordinary remedy for breach of an ordinary obligation.

A prosecutor’s extraordinary duties

The ethics rules applicable to all lawyers govern many areas of prosecutor conduct, but Model Rule 3.8 does contain some provisions applicable only to prosecutors because certain tasks are unique to the prosecutor’s office. Model Rule 3.8(e), for example, restricts a prosecutor’s use of a grand jury subpoena to compel a lawyer “to present evidence about a past or present client” unless certain conditions are fulfilled. This restriction applies only to prosecutors since only prosecutors have access to grand jury subpoena power. Model Rule 3.8(c) states that a prosecutor shall “not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing.” Here, again, this restriction is unique to prosecutors because the only lawyer who is in a position to obtain such a waiver from “an unrepresented accused” is a prosecutor.
Despite the title of Model Rule 3.8, “Special Responsibilities of a Prosecutor,” other provisions that appear in Model Rule 3.8 are not truly peculiar or unique to prosecutors. For example, Model Rule 3.8(a) states that the prosecutor must “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” Here the prosecutor is required to act as a “gatekeeper” and ensure that a charge has adequate legal and factual support. At first glance, this provision appears similar to Model Rule 3.8(c) and (e), discussed above, since the only lawyer who can prosecute a criminal case is a prosecutor.
But Model Rule 3.1 applies similar gatekeeping duties to all lawyers, requiring them to have “a basis in law and fact . . . that is not frivolous” before advancing a claim or argument on behalf of a client. And Rule 11 of the Federal Rules of Civil Procedure creates a duty for civil advocates to screen their filings to make sure they are “well grounded in fact and . . . warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” The probable cause standard applied to prosecutors may be more demanding than the standards used under Model Rule 3.1 and Rule 11, but still the prosecutor’s gatekeeping duty is not unique. The difference, if any, is one of degree rather than kind.
Model Rule 3.8(f) is another provision that creates a duty not peculiar or unique to prosecutors. Model Rule 3.8(f) restricts public comments by prosecutors “that have a substantial likelihood of heightening public condemnation of the accused.” It also creates a duty to exercise reasonable care to prevent police and others associated with the prosecutor from making statements that would violate either Rule 3.8(f) or Model Rule 3.6, the general provision on public comment applicable to all lawyers.
Again, at first glance, this rule seems unique to prosecutors because it talks about comments concerning an “accused” and exercising control over public comment by police. A criminal defense lawyer or a civil advocate is not, for example, in a position to exercise control over the police regarding comments about an accused person. But, again, one finds similar restrictions on both criminal defense lawyers and civil advocates elsewhere in the Model Rules. Model Rule 3.6 sets forth a general bar on a lawyer participating in litigation from making a public statement when doing so creates “a substantial likelihood of materially prejudicing an adjudicative proceeding.”
Model Rule 3.6 clearly applies to prosecutors. Comment [5] to Model Rule 3.8 notes that Rule 3.8(f) “supplements Rule 3.6.” So in the area of public comment all advocates have the same duty to control their statements about pending cases. Rule 3.6 binds prosecutors, criminal defense counsel, and civil advocates alike. But Rule 3.8(f) does impose on the prosecutor an additional burden to avoid heightening public condemnation of an accused, but the difference here is one of degree rather than kind.
Then there is the prosecutor’s duty under Rule 3.8(f) to control the police. Is that a restriction unique to prosecutors? Model Rules 5.1 and 5.3, which apply to all lawyers, create obligations for lawyers to control other lawyers in their firms as well as nonlawyers “employed or retained by or associated with” the lawyer. Model Rule 8.4(a) makes it professional misconduct for a lawyer to violate the ethics rules “through the acts of another.” The obligations created by Rules 5.1, 5.3, and 8.4 impose on criminal defense lawyers and civil advocates a duty to take steps to control the public statements of others with whom they work that is quite similar to the prosecutor’s duty to control police created by Rule 3.8(f). Though the duty under 3.8(f) may be more demanding since it forces prosecutors to control others who work with them not for them, it is a difference of degree rather than kind.

When are a prosecutor’s duties distinct?

There are situations in which the prosecutor’s obligations are truly distinct, especially when compared with those of a criminal defense lawyer. For example, the prosecutor under Brady v. Maryland and Model Rule 3.6(d) is obligated to turn over exculpatory evidence and information. The analog for a defense lawyer would be an obligation to give to the prosecution inculpatory evidence and information. Clearly, the defense lawyer has no such obligation, based on rules of confidentiality and the constitutional prohibition on compelled self-incrimination.
But the prosecutor’s duty to turn over exculpatory evidence is not more demanding than what is required of civil litigants under modern federal discovery rules. These require a party, without awaiting a discovery request, to turn over all information and the identity of all witnesses that support or undermine any party’s claims or defenses. While the prosecutor’s Brady disclosure obligation is restricted by a narrow materiality limitation, federal civil discovery rules permit a party to “obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party” even if the information is not admissible at trial “if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” (FED. R. CIV. P. 26.)
A stark contrast between prosecutor and criminal defense counsel is found in their respective obligations regarding the filing of a criminal charge and the entry of a “not guilty” plea. If the prosecutor knows that someone is innocent, the prosecutor is obligated not to charge or convict the person. If the prosecutor learns that a charged defendant is innocent, he or she must dismiss the charge. But when a defense lawyer knows that a client is guilty and concludes that the prosecution can prove its case beyond a reasonable doubt, the defense is not barred from entering a not guilty plea, continuing to represent the client, and working toward a dismissal or acquittal. To require anything less of defense counsel would negate the presumption of innocence, the right against self-incrimination, and would relieve the government of the burden of proving guilt beyond a reasonable doubt.
A prosecutor’s obligations and the obligations of a criminal defense lawyer or a civil advocate differ frequently in areas where prosecutors exercise discretion and their conduct is not covered by general ethics rules or the special rules for prosecutors found in ethics codes. We expect the prosecutor to act as a monitor both of substantive and procedural justice in ways not expected of criminal defense lawyers or civil advocates. Though seldom described in detail, it is this monitoring obligation that creates for the prosecutor a responsibility that properly is characterized as different, special and extraordinary in comparison with other litigating lawyers.


The notion that there is something exceptional about a prosecutor’s ethical obligations is critical in understanding those obligations, but overgeneralization and overstatement can mask the fact that in many situations the prosecutor is subject to precisely the same rules as other litigating lawyers. We will address the rationales for creating distinct obligation for prosecutors in our next column.



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